DOJ Tells Congress SESTA/FOSTA Will Make It MORE DIFFICULT To Catch Traffickers; House Votes For It Anyway

from the wtf-guys? dept

As we've been discussing, this afternoon, the House voted both on Rep. Mimi Walters' bad amendment to attach SESTA to FOSTA, and then on the combined bill -- and both sailed through Congress. Somewhat incredibly, this happened even though the Justice Department weighed in with a last minute letter saying that the language in the combined SESTA/FOSTA is so poorly drafted that it would actually make it more difficult to prosecute sex traffickers, and also calling into question whether or not the bill was even Constitutional.

You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:

The justice department says in this letter that they believe any revision to define “participation in a venture” is unnecessary and in fact that the new language would impact prosecutions by effectively creating additional elements in fact they say the amendment will make it harder to prosecute…There’s a thing we get told in law school: Bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That didn’t happen....

And thus, Walters' amendment prevailed 308 to 107 and then the combined (terrible) bill sailed through the whole House 388 to 25. Kudos the to the 25 Representatives who actually understand how CDA 230 works and why this bill is so bad, but it's depressing to think that it was just 25.

In response to this, Senator Ron Wyden has already put out a statement scolding the House for failing to understand what they've just done:

History shows that politicians have been remarkably bad at solving technological problems. I have written laws in the past, including Section 230 of the Communications Decency Act and the Internet Tax Freedom Act, that have kept politicians and special interests from sinking the internet.This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill – specifically that it will become harder to expose sex-traffickers, while hamstringing innovation – will be something that this congress will regret.

I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. I have authored laws to support victims and provide ongoing funding paid for by those convicted of heinous crimes against children, and authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. However, the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.

This is the perfect encapsulation of a broken Congress. They "did something" for the grandstanding feature alone. Lots of Congressional Representatives will now claim that they "voted to stop sex trafficking" or some such, without bothering to understand or care why this bill actually will harm the victims of sex trafficking, making it more difficult for law enforcement to go after actual traffickers, creating serious incentives for websites not to stop sex traffickers from using their platforms and not to help law enforcement, and (as a side effect) seriously undermining free speech on the internet.

The bill now moves back to the Senate, which has already passed its version of SESTA out of Committee where Wyden put a hold on it. It appears likely that a vote will happen sometime soon on the bill, so now might be a good time to call your Senator and let them know that as good as this bill may sound from its title, its actual impact will be a total disaster.

Re: Going the extra mile

Things like this make me wonder why there is no mandate to review proposed legislation for Constitutionality, and then drop those that fail the 'smell' test.

Are you suggesting the Supreme Court should review all legislation? That's...a little much to put on their plate.

And while this is a bad law, I'm not sure what's unconstitutional about it. Speech integral to the commission of a crime is already unprotected under the First Amendment. This doesn't affect what speech is or isn't protected; what it does affect is who's liable for illegal speech.

There are a lot of terrible laws that are still perfectly constitutional.

Re: Re: Going the extra mile

I wasn't thinking of the Supreme Court, but a couple or five lawyers trained in constitutional law, working from a non (as apposed to a bi) partisan office that reviews proposed legislation and language for potential problems, and then reports back to both houses. If Congress passes things that won't pass the 'smell' test, they they are making work for courts anyway, which isn't really in their job descriptions.

Re: Re: Re: Re: Going the extra mile

He never said it had power over Congress.

He said, and I quote, "reviews proposed legislation and language for potential problems, and then reports back to both houses."

This is nothing new. In fact, hundreds of such committees currently exist. Advisory Committee on Student Financial
Assistance, Advisory Committee on the Protection of Presidential and Vice-Presidential Candidates, Commission for the Preservation of America’s Heritage Abroad, Library of Congress Trust Fund Board, Migratory Bird Conservation Commission...

It is no breach of Congress's powers or anything else outlined in the Constitution for them to appoint advisors to officially research and report to them about certain things. And Congress has full control over how they are to pass laws. All the Constitution says is that the actual elected members of the House have to pass the law, and the actual elected members of the Senate have to pass the law, before the President can sign it into federal law. The House and the Senate can each pass whatever rules they like, so long as the rules only affect their own procedures and would not contradict any laws.

Re: Re: Re: Re: Re: Re: Going the extra mile

Sorry, no. In no way does that make you right. The committee *itself* would be new, just as, at one point, the Migratory Bird Commission was new. There had never been a Migratory Bird Commission before! Nobody had ever reported to Congress on the status of migratory birds!

But obviously, something being somehow new, does not in any way make it unconstitutional. Otherwise we couldn't have new laws in the first place, even a new President.

The not-newness I referred to, is merely the idea of a commission outside of Congress that reports back to Congress so that Congress may decide what law they will pass.

In this case, it would be a commission outside of Congress that reports back to Congress on their view of the Constitutionality of what law they are intending to pass.

Furthermore, if the House or the Senate wishes to constrain themselves to requiring the commission of such a report on every bill before making a final vote on it, it is not unconstitutional in any way. IANAL, nor do I think it wise to put such broad veto powers into any non-elected position, but I would not even believe it is unconstitutional for them to *require* a successful report before the final vote to pass can be held.

The bill still has to be passed by the House or the Senate in the first place. That's the only part the Constitution cares about. What steps they take in order to get there, the Constitution couldn't say or care less.

Re: Re: Re: Re: Re: Re: Re: Going the extra mile

> Sorry, no. In no way does that make you right. The committee *itself* would be new

Okay, I'm not even sure why you're arguing a hypothetical sitch that wouldn't have NEW powers, and then going on at length about how it could be done, IS being done, and MORE "advisory" committees should be set up...

Because MORE of the same surely won't help!

Anyhoo, IF I'm wrong in taking the original comment as blithely proposing NEW REVIEW of passed bills with VETO power, then I'm wrong.

But still sure looks like creating a new UN-Constitutional VETO! Else why bother?

I guess you can go on arguing, but it's definitely HYPOTHETICAL, so I'm not going to invest more time. OKAY?

Re: Re: Re: Re: Re: Re: Re: Re: Going the extra mile

I guess it doesn't matter that Congress gets experts to testify before them on certain matters.

You're right, committees are useless. They should just pass every bill without doing any research on what it actually does, or even reading the bill, or even reading the Constitution to know what they can or can't do.

There's no way there could possibly be people who have better insight on any subject than Congress. They know everything already, and would in no way change their mind when presented with an expert opinion.

Re: Re: Re: Re: Re: Re: Re: Re: Going the extra mile

Re: Re: Re: Re: Going the extra mile

What an ass.

A report is not a veto, asshole, it's a report. Congress then gets to do whatever they want with the report (as with CBO reports), but they then may or may not know that their piece of legislation may or may not pass Constitutional muster, but may have a better idea of whether it will or won't.

Re: Re: Re: Re: Re: Re: Going the extra mile

Congress is full of lawyers... who have various backgrounds in various areas. I don't expect my divorce lawyer to know copyright law, nor do I expect an environmental lawyer to be knowledgeable about criminal law.

The point would be, of course, to inform the House or Senate *before the final vote.* The same way that any other commission, committee, or board already does.

And, yet again, I believe there is nothing unconstitutional about a new veto if it applies only to the governmental agency which passed that rule or law in the first place. The House could not pass a new veto on the Senate, but they can pass a new veto on themselves with no problem.

Re: Re: Re: Re: Re: Re: Re: Re: Going the extra mile

You didn't concede defeat, you said it's "just a hypothetical and so it doesn't matter that I can't show you any actual reason I'm right and you're wrong" and stormed off to... the next comment down the line.

I never contradicted myself, either.

The original commenter did not propose a veto, he proposed a committee.

But a veto such as YOU proposed would still likely not be unconstitutional.

For someone who complained about people not going to school and taking law courses, I must admit, I am rather disappointed in your liberal application of logical fallacies here.

Re: Re: Going the extra mile

The part that the DOJ has pointed out as unconstitutional is, specifically, the ex-post-facto part, not any part to do with the first amendment.

The law states that the websites are to be held responsible for content regardless of when it was received, stored, or transmitted. Thus, it establishes a new penalty for an act that was legal when it was committed, and thus it is unconstitutional.

Re: Re: Re: Going the extra mile

> The law states that the websites are to be held responsible for content regardless of when it was received, stored, or transmitted. Thus, it establishes a new penalty for an act that was legal when it was committed, and thus it is unconstitutional.

I don't agree with that view. Illegal content / advertisement is illegal NOW; this is just a matter of making web sites responsible for ongoing or future content.

In any case, I highly doubt that prosecutors will be digging through the entire interwebs for last 20 years, so there will be no problem in practice.

Re: Re: Re: Re: Going the extra mile

> In any case, I highly doubt that prosecutors will be digging through the entire interwebs for last 20 years, so there will be no problem in practice.

That's not what the law means.

The law means that, if it was recieved, stored, or transmitted at any point, it is illegal now.

Even if that Facebook comment advertising prostitution was deleted years ago, after the case had already been closed and the perpetrator was in jail, not only is Facebook on the hook now, but so is every ISP who ever broadcast that comment, because they took no action against it.

Additionally, it's not the fact that an act is illegal now -- it's the creation (or intensification) of a penalty for the act that did not exist before. In this case, that penalty is against the website or ISP, which had no penalty before. When that website or ISP received that comment, it was not liable for it, and so it likely didn't even know it existed.

Re: Re: Going the extra mile

Because they are not paid to read bills or to write them. They are only there to vote the way they are paid to. Let's be honest here, and it doesn't matter what party you are in, your only real jobs are to fundraise for half of your working day, and then go vote the way your donors (owners) tell you to.

Broken Congress

. . . The Department objects to this provision because it is unconstitutional. . . .

“This is the perfect encapsulation of a broken Congress.”

I watched and listened to some of the debate on C-SPAN this morning. Representative Lofgren brought the ex post facto concern to Congress' attention on the floor of the House. But it apparently didn't bother them.

Re:

It makes me wonder how many of them don't just support it, but engage in it. After all, if passing SESTA/FOSTA makes it harder to catch traffickers, then traffickers would have a vested interest in passing them!

Re: Congress?

Re: Congress?

The system is too corrupt for merely voting to be good enough. Both sides' candidates are often terrible, in every elected seat, but they have too much support from the rich, powerful, and influential.

Sanders was popular with the people. But his policies would be bad for business. So companies gave money to Clinton and those who would support Clinton in the primaries.

Trump had business ties. Cruz was selfish. Rubio wanted to change things up. Trump was good for business. All the money went to him.

As far as independents went, the Green Party had merely an activist who opposed everything, and the Libertarian party had a spacecase. Even those who would rather vote for one of them felt that a vote for the Libertarians was wasted in the face of the many extreme supporters of either side.

Re: Re: Re: Re: Congress?

Re: Re: Re: Re: Re: Congress?

I'm still waiting for those rich people (who, weeping with gratitude for the fat tax breaks they've received) to donate more lavishly to charities and to set up more businesses with all that extra cash.

I'll be waiting for a while, won't I?

They're not gods and we shouldn't treat them as if they are. Nobody should be allowed to acquire so much that they can effectively own us.

Re: Re: Re: Re: Re: Re: Congress?

Re: Re: Congress?

You're wrong about "all the money" going to Trump. Trump had much, much less campaign contributions than Jeb Bush (or Rubio) in the primaries, and less money than Clinton. He even had less money than Cruz in the primaries (thanks to the Mercers, who have switched to being big Trump backers.) You can check with Open Secrets, the FEC, the Sunlight Foundation, they'll all agree on that.

I despise Trump, but he didn't win because of money and companies, and he didn't win because of the "rich, powerful, and influential." He won the primary because he appealed to people with whom I utterly disagree on trade and immigration in a way that other politicians don't.

If money, especially corporate and big donor money, won primaries and elections absolutely, then Jeb Bush would have won the Republican nomination, and Clinton would have beat Trump.

Misdiagnosing the problem is an enormous mistake, because it causes you to recommend bad solutions. In fact, campaign finance reform probably makes it easier for celebrity candidates like Trump who are already famous and don't need advertising to introduce themselves to the public.

Re: Re: Re: Congress?

But Trump did receive a lot of money: he received billions in free advertising from news media who treated his campaign as an entertainment spectacle.

To try and extract some kind of pattern or trend based on Trump is a mistake. Trump is unique. What happened in 2016 is not representative of other celebrity campaigns -- if it were, we would have elected Fred Thompson in 2008.

That Trump received the nomination despite not being a favorite of the donor class does not mean that campaign finance is not a major issue. It means that donors' power is not absolute; it doesn't mean that their power is insignificant.

Re: Re: Re: Re: Congress?

Exactly, he did receive billions in free advertising from news media who treated his campaign as an entertainment spectacle. Are you planning on instituting news censorship as part of campaign finance reform? I don't think anyone is, so it's pretty clear that campaign finance reform wouldn't limit his strategy.

If campaign finance reform makes people liked by the donor class less likely to win the nomination and the election but has no effect on celebrities, then it <i>must</i> make people like Trump more likely to win the election. Celebrities might not get all the benefits from it, but they'll certainly get some, and I would argue a lot.

Similarly, for people pushing on gun control, it's a tremendous mistake to focus on donations. Money coming from pro-gun donors is extremely minor compared to other issues; it's single issue voters driving it. In addition, it's not like the big money corporations like SESTA (they could live with FOSTA); again, that's driven by popular (but mistaken) revulsion at trafficking and a desire to "do something."

There are some issues that donors rank highly and where they have a big influence. However, it's not every issue (and on many issues different corporations push in different directions, like with steel and aluminum tariffs) and it's equally possible that by pushing campaign finance reform you'll get worse policy on other issues, issues you might consider more important.

I like your definition

But most of the time when people talk about a "broken Congress," they are complaining that Congress isn't passing enough laws (and don't really care about the details.) This is utter nonsense of a bill, a total disaster, but presumably it will make the sort of people who love bipartisanship for bipartisanship's sake jappy.

Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

And so ALL the argument that you have left is to predict DOOM, DOOM!

It's likely DOOM that affects only you and other corporatists, and that'd be GOOD for society.

I hope that requires "platforms" to spend some money "policing" sites so that open drug-dealing and sex-trafficking doesn't take place.

I doubt there's ANY downside for anyone except the corporations and sex-traffickers that Masnick defends.

Masnick has good solid record: whatever he predicts is the least likely outcome, so the future will probably be wonderful!

Oh, and "last minute" letter from DOJ: they've only had MONTHS, so that was just a CHEAP DESPERATE ploy.

Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

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Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

> Due to the passing of FOPTA, we regret to inform you that we are currently unable to accept any user comments without strict human verification of your comment. Otherwise, every employee of (insert corporation here:

GOOD! So long as applies to EVERYONE, not just ME.

There are definitely too many idiots making up fantasies of what is yet to happen (cough, cough), and too many idiots with nasty one-liners (see almost any web-site comments section), so IF those are reduced, I'd be pleased and so would society when eventually notice.

However, that's not going to be the effect of this bill, darn it. Just fairly narrowly targets blatant advertising of possibly forced services. And yet you seem to be against it.

Re: Re: Re: Passed &quot;388 to 25&quot;! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little &quot;blog&quot;.

Re: Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

It is going to be the effect of this bill the same way that COPPA resulted in most websites forbidding 13-year-olds from using them.

Because when an entity is presented with the option of "you can no longer provide X content or you'll get fined and sued", that entity now has to make absolutely sure it is not providing X content.

What's the easiest way to make sure it is not providing X content?

In COPPA's case, it was easier to forbid children from accessing the internet at all than it was to remove any requirements for age or email address, or to weed through specific ads to see if they are unhealthy for children.

In this case, it is easier to block all user-based content and force it to be reviewed, than it is to simply make good guesses based on algorithms and user reports.

Or, alternatively, they can hope the courts will interpret the law as "we were not alerted about this content so we did not remove it". Therefore, either every comment that is reported is immediately removed for review (allowing for mass silencing of anyone you don't like), or all reports and review *entirely* are removed, thus removing the application of Section 230 at all. Facebook will never remove any content so that they don't have to review all billions of posts and videos and comments for potentially prostitutional material.

Re: Re: Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

It very unlikely anyone would want all user-based content blocked and force it to be reviewed.

Re: Re: Re: Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

What, all politicians are very happy with the idea that all content should be previewed and filtered, as is the MPAA and RIAA.

Re: Re: Re: Re: Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

Re: Re:

Re: Re: Re: Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

Or, alternatively, they can hope the courts will interpret the law as "we were not alerted about this content so we did not remove it".

But just how many lawsuits, and how much will it get companies to get that accepted, given aggressive attorney generals, and the MPAA/RIAA all prepared to use the courts in an attempt to drive companies they dislike into bankruptcy.

Suck it blue.

Re: Passed "388 to 25"! -- You are with the SIX PERCENT, then. I think that's a good measure of how popular your unlimited corporatism, society-wrecking, notions actually are outside of this tiny little "blog".

Retaliation?

I wonder if it is specifically Silicon Valley retaliation. This administration has made no bones about the fact they are going to punish their enemies and reward their friends to hell with things like 'constitutionality' or 'actually being good for their stated goal'.

Understanding

"...scolding the House for failing to understand what they've just done..."

They understand what they've done...NOT voted AGAINST FIGHTING sex trafficking. Of course they're largely ignorant boobs, but far more so are their constituents. Neither group grasps arguments more nuanced than whether you're FOR or AGAINST sex trafficking. No Congressman is going to risk the appearance of being of the wrong side of that question.

Re: Re: Understanding

"Just because you slap a label that says 'M&Ms' on a pickle jar doesn't make it candy."

For all public and political intents and purposes the label DOES make the contents candy as long as the jar remains unopened. Neither Congress nor the majority of it constituents are going to test the label by opening the jar.

For as great an idea as democracy is, this is one of its failings, in that a whole group of elected representatives can vote like a bunch of idiots because... feelings.

Two things I can think of to fix this political process. Both would be impossible because the first idea would involve too much change, and the second idea would involve placing unrealistic expectations on politicians, but here we go:

The first of my ideas would be to have the scientific method adapted into the democratic process. Allow facts to serve in place of human votes and have a panel of judges weigh each point before coming to a decision.

The second idea I thought of would be to force congresspeople to actually read what they're voting on and then quiz them to make sure they've fully read and understood the material. You know, like doing a book report in school, throw a few questions in there that make sure they've been paying attention. The test wouldn't determine what their opinion is, it will merely test that they were doing their job and reading the law they're about to vote on, rather getting the summary from their advisors while they bang interns and snort coke. If they pass the test, they get to vote.

Re:

Also... even crazier idea... promote logical thinking based on empiricism and a culture in which nerds are held in the greatest of awe. We are going to have to do this one person at a time but like a virus this idea could spread until the majority of people are... less flippin' stupid at the very least. I'm personally working on this by debating with people online in the hope of influencing them. Sometimes it works.

Re:

Re: Re:

Please don't misunderstand. What I'm confused about is why are laws not challenged constitutionally, first and foremost, before they're just hastily voted on by congress.

I am not an American citizen, so the subtle details are a little unclear to me, but isn't the constitution supposed to be the highest law that you have, above all else? If this is true, then you must understand my confusion when I so often see it being violated in your lower levels of legislature and by your police departments.

Even if those bad laws are overturned, and they often are, my question is how did they become law in the first place? To me that shows the constitution is not doing its job to defend U.S. citizens.

There could be a better system. Perhaps sort of an impartial body, like a court of judges versed in constitutional law, who can review legislative drafts prior to a congressional vote. These judges could then either approve the legislature for voting, or reject it along with a statement clearly explaining what details in particular are incompatible with the constitution, and which amendments they are violating.

A system of checks and balances like this could both preserve constitutional rights for everyone, while allowing good, well-thought legislature that is compatible with the constitution to be voted on by congress in a democratic fashion.

But hey, like I said, I'm not one of you guys so I don't know if this would work at all. Where I'm coming from, I like the idea of America. I like it on paper. I'd just like to see it executed a bit more properly, I guess.

even more evidence of the sort of stupid, self-serving idiots we voted into these high, political positions! perhaps we'll learn a bit and actually come to our senses and vote the fucking morons out next chance we get, making sure that whoever gets the vote knows the same will happen to them if they end up being just as stupid and ignorant!!

Well...

You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this.

If you assumed that the purpose was to protect non-politicians, then yes, the DOJ(among others) chiming in to point out that the bill stands to make things worse for current and future victims would be enough to cause a pause for review, if not scrapping the bill entirely.

However, it's been pretty clear from the get-go(at least to me), that this has always been a cheap, if highly dangerous and damaging PR stunt.

Fosta

What a great thing to have the president sign this and to offer the people what they need . I have nothing against sex but people had been getting raped and catching things like Hiv because the quicky did not tell them that. There have been numerous beatings and Murder . They are not Isolated Incidences . It can save so many lives .